Opinion article by our coordinator in Público on 18/95/2021 regarding children’s vacations abroad and the (un)need for consent from both parents. Read the article on Público’s website or the translation and pdf below:
“Children’s vacations abroad and the (un)need for consent of both parents
The decision to spend a vacation with the child in a foreign country does not need the agreement of both parents but can be decided by either parent. This is, in fact, the majority position of our courts.
The summer vacations are approaching and, with them, an increase in parental wars. As we know, divorce or separation is often followed by relentless parental conflict that in some cases drags on in court for years. And one of the issues – or pretexts! – for that parental war is foreign vacations.
There is a widespread perception that in the event of divorce or separation, children going abroad on vacation with one parent requires the consent of the other. Not true. Or, at least, it is not true in the overwhelming majority of cases.
The exercise of parental responsibilities over children is, as a rule, joint. And it will only not be so if the court, by reasoned decision, inhibits one of the parents from exercising these responsibilities. This means that it is up to both parents to decide on the issues, called of particular importance, that are rarer, more serious and more structuring for the children’s lives. These include the choice of public versus private education, the choice of the child’s name, religious education until the age of 16, the child’s place of residence, etc. Parents must reach a consensus, and if this fails, the court will decide.
Issues of the child’s daily life, such as whether to watch TV or read a book, or what time to eat dinner, are decided by the parent the child is with at any given time. Note, however, that on these day-to-day issues, the parent who does not usually live with the child is obliged to follow the most relevant educational guidelines set forth by the resident (or custodial) parent.
Nowadays, a trip abroad for vacation purposes can no longer be considered a matter of particular importance. In fact, this is not a rare, serious or structuring event in a child’s life. On the contrary, it is a commonplace event in the lives of many families and, indeed, commonly perceived as beneficial to the child’s upbringing. Of course, we are talking about vacations to ordinary tourist destinations that do not raise exceptional safety concerns.
Therefore, the decision to vacation with the child in a foreign country does not require the agreement of both parents, but can be decided by either parent. This is, in fact, the majority position of our courts.
This is also to say that the requests with which, at this time of year, parents flood the offices of lawyers and notaries public to have their signatures notarized on travel authorizations, are unnecessary… As long as the parent is not judicially disqualified from exercising parental responsibilities, he or she can travel with the child.
This is also what follows from the Decree-Law nº83/2000, of May 11th, whose art.23, n.º1, foresees “Minors, when not accompanied by those exercising paternal power, may only leave the national territory by showing authorization to that effect”. Now, knowing that both parents exercise parental authority – or parental responsibilities – either of them may leave the country with the child. That is, of course, if neither of them is inhibited by the court. This information can be found on the website of the Foreigners and Borders Service.
Vacations abroad, which do not need to be authorized, should, of course, be communicated to the other parent, just like any other relevant issue concerning the children. Doing so is a moral obligation, inherent to the responsible and healthy exercise of parenthood, but also a legal duty (see article 1906, no. 7 of the Civil Code).”